Ask the Expert

Marjorie Jean Meyer, CMCA®, PCAM®
Vice President and National Director of Education and Certification
ASSOCIA

Hi,

What is the most common method of electing the officers on the Board of Directors? We have had secret ballot for the president and then typically assigned the three other officer positions. How should the Vice President be elected? Just FYI we are an HOA of 800+ homes, tennis, pool, small pond, 17 acre lake. we have L&M, ACC, special events, Communications to name a few other positions. Thank you.

- Kris

Typically, homeowners elect their board members by written ballot at an annual meeting and the board members appoint the officers to serve at the discretion of the board at the first board meeting following the annual meeting. That being said, what's important is how YOUR association's bylaws describe the election and/or appointment process, because the procedure detailed in your governing documents is the mandated process for your association.

Sincerely,

Margey

After speaking on a motion, is it acceptable for the same person to conclude comments by moving the previous question?

- A. B.

While it is permissible for the same person to move the previous question, it takes 2/3 vote of the group to agree to end debate and vote on the motion. It's better to let everyone have the opportunity to speak on the issue than to try to cut off debate. If the discussion is becoming repetitive, it's time to call the question and most of the participants will probably agree.

Sincerely,

Margey

I am the President for my HOA in Tampa Florida. I am looking for answers on the role of the President. Does the president have the right to make a motion and vote when there is not a tie? Does Roberts Rule of Order express this somewhere? Also, can the president suspend a motion or squash a motion/table a motion? What special things can a president do? I feel that I am just there to read the agenda and give my comment on the issues, the others don't believe I have the right to do much else. Please help.

- Adrian R.

Parliamentary procedure allows board presidents to make and vote on motions just like other members of the board. For a good overview of parliamentary procedure, go to:

• Cagle's Parliamentary Procedure
  
  
• How to Use Parliamentary Procedure - National Association of Parliamentarians
  
  
• Parliamentary Procedure Online!

 

Sincerely,

Margey

We only have 2 board members and the builder at this time. They meet once a month but no co-owners are allowed to attend any of the meetings. I know we have no voice, however, I feel we should at least be allowed to attend the meetings, since what they discuss has a direct effect on my life here. Everything seems to be a secret. The 2 board members do not discuss anything that is decided, and when asked will not disuss anything that happened at these meetings. Is this the norm or is it just this builder and management company? I have asked the Management Company and was told the meetings are for board members ONLY. I was told I may be able to ask questions at the annual meeting. I think the co-owners should be kept informed since we pay a monthly maintenance fee. At least the 2 board members should keep us informed.

- William C.

It seems to me that your governing documents, in particular the Declaration and Bylaws, would contain provisions requiring that owners be permitted to attend board meetings. They may not be permitted to speak during the meeting since it is a business meeting of the board and not of the owners, but they should be allowed to observe. Absent any language in your documents addressing this issue, the next place to look would be your state statutes. Many state legislators have approved a law mandating that all homeowner association board meetings be open to the members, limiting "executive sessions" to discussions on litigation, personnel matters, contract negotiations and issues of a sensitive nature such as a peeping tom. If you do not know how to access your state's website, enter into the keyword field of any search engine "(your state) legislature" (without the parentheses or quotation marks), then drill down until you find the existing statutes or code.

With regard to keeping homeowners abreast of the association's activities and board decisions, you're absolutely right. Board members should keep their members informed, either through regular mailed notices or postcards, bulletin board postings, email or website. Owners have a right to know how their money is being spent and if their elected board members are representing the best interests of the association.

I hope that showing your board this message will encourage them to be more open in their activities. If there's no change, perhaps there is a state ombudsman or commission to which you can send complaints regarding your homeowners association. If no such agency exists, you might try advising your association's insurance agent of your concerns.

Sincerely,

Margey

Assuming this remains confidential and is not published with my name:

1. How many members make-up a board of directors?
2. What is your professional opinion on having 2 of 4 board of directors being twin sisters? 
3. What happens in a situation when there are not enough homeowners willing to run for the board of directors?

Per your request, we will not use your name in the response we post to our website.

With regard to your first question, the number of members serving on the board of directors of a homeowners association typically ranges from three to nine. It all depends on the requirements detailed in the Bylaws of the association.

While two members of the same home serving on the board may raise suspicious among the other association members, it is not always illegal according to the Bylaws of the association. Unless the Bylaws specifically prohibit two members of the same household from serving on the board, so long as both members are record owners they may both serve. However, the membership's perception of impropriety should weigh heavily on the sisters' decision to be board members simultaneously, and ultimately it is the decision of your fellow homeowners who they elect to best represent their interests.

Homeowner apathy is one of the most common challenges in a community association. How can current board members find their replacements or additional volunteers to fill unexpired terms? Consider the following:

1. ensure that board members share the responsibility equally so no one director spends an inordinate amount of time on association issues;
   
   
2. create committees to help the board investigate issues and recommend solutions;
   
   
3. groom committee members to eventually serve as board members;
   
   
4. thank volunteers for their efforts and personal time -- recognize them in the newsletter and at annual meetings;
   
   
5. don't let board meetings drag on for hours -- keep them focused on the business of the association, using a timed agenda that allocates a certain amount of time to each topic so meetings can adjourn within two hours;
   
   
6. start meetings no later than 5:00 P.M.; better yet, meet at 7:00 A.M. or at lunch time to ensure an expeditious, effective and focused short meeting;
   
   
7. don't micromanage the manager -- the board should set policy and the manager should implement it and keep the board informed of his or her progress and recommendations;
   
   
8. personally ask neighbors to serve on the board or a committee;
   
   
9. offer fun events and gatherings to encourage a sense of community in which neighbors want to help perpetuate the supportive, responsive and beneficial environment.

Sincerely,

Margey

We are trying to recall the President of a condo association in Hollywood, FL. We have followed procedure in order to have the meeting for the recall. The President thinks we don't have the right to vote her out - only the board members. She refuses to hold the meeting for the homeowners to vote. What can we do?

- Gus

Typically, the bylaws of a community association mandate that owners elect their board members, and only homeowners can remove those board members. However, board members elect their own officers who serve at the direction of the board and who can be removed only by the board.

Sincerely,

Margey

Top | Board of Directors | Communications | Finances | General
Insurance | Legal | Maintenance | Management | Rules

I am the President of a newly formed homeowner's association. We are small, 70 homes to be exact. Dues are small as well ($150 per year per home). We are responsible for maintenance of common areas and a few other small items.

My question is this - are there statistics on what percentage of associations use an outside accountant to track their books (and also do the taxes)? I ask because our treasurer is less than trustworthy at this point, plus we've gotten legal counsel to the effect of "we won't represent you unless you have an outside accountant doing your books".

Is this normal? My homeowners claim an accountant would be a waste of money ($850/yr includes tax prep), my feeling is a good checks and balances system is needed so my board never comes into question on money issues (integrity issue). Thanks.

- Steve

Having a third party, independent audit or compilation conducted by a competent accountant or CPA is a wise decision by the board. While the purpose of the exercise is not to uncover fraud, it is to confirm that the financial reports prepared by the association's agent adequately reflect the financial condition of the community. Even if your governing documents or state statutes do not require homeowner associations to have annual audits or compilations, I recommend that you contract for this service. It's well worth the money to know that the person who is preparing your financial reports is doing a good job.

Sincerely,

Margey

My mother owns a condominium in New Jersey.  Not all of the units are condos, as the tenants on fixed income at the time the building went condo were allowed to stay (my mother bought in 1990). The building was recently bought by new owners last year.  My mother and the other condo owners were assessed around $2000 to offset painting and putting new rugs in the halls.  Now the condo owners are being assessed another $1800 to pay for leaks in the building that need to be fixed.  This is in addition to their maintanence, which was also raised.  Is this legal, or is this the financial responsibility of the building owners?

- Ann M.

The answers to your questions should lie in your association's Condominium Declaration. Typically, all owners of the condominium building, whether they are onsite or investors, are responsible for the maintenance of the common elements in accordance with their percentage ownership interest. If the owner of the non-converted units is not considered a condominium owner but is benefiting from the improvements paid by the condominium owners, there should be a provision in the Declaration requiring his or her  proportional contribution.

If after reading your Declaration you determine that the investor owner is indeed obligated to pay any special assessment and increases in maintenance fees but is not, the next step would be to send a copy of the appropriate provisions in the Declaration to the investor, board of directors, and management company, if applicable, detailing your concerns and mentioning the relevant provisions in the Declaration. If your communication elicits no or an unsatisfactory response, it may be time to alert your fellow condominium owners to the inequity and violation of your governing documents. Perhaps by joining forces, you may be able to remove the existing board members and elect new members who promise to enforce your association's governing documents.

Sincerely,

Margey

Can a Developer legally borrow money in the HOA's name without the Home Owners  knowledge?  Our developer has not turned over the HOA to Residents yet.  He borrowed $175,000 to build a pool about 5 years ago when only about 2 houses existed.  The bylaws clearly read that you can't borrow more money than can be paid back in one year.  The bank has released the developer from personal guarantee and has now threatened to put liens on our homes if we don't pay the debt.  Not one resident knew about the loan because the developer was making the mortgage payments and even subsidizing the maintenance.  We could triple the dues and not cover the mortgage payment.  The OTS says this is a legal matter and won't help stop the bank from sending these threatening letters.  What should we do?  Is there any case law on this type of issue? The Developer has signed over Power of attorney to the bank and they changed the bylaws to read that all dues must go to collateral of their loan.  The pool has been closed for 2 years now, all the pipes have frozen, bushes are dead and we just want the bank to keep the pool and move on.  The bank won't won't negotiate with us. Can you help provide a potential solution?

- B.

You need more than just a general expert on community association issues -- you need a competent attorney to guide you through the morass of investigation and litigation to determine how you can resolve the problem of your community's pool and homeowners' debt. If you would write back with the name of the city in which your community is located, I will try to provide you with the names of lawyers in your area who focus on community association matters.

Sincerely,

Margey

When we bought our house in a golf community in central Texas, the purchase contract required an agreement to pay maintenance fees to the golf club for maintenance of streets and other common areas plus water and sewage treatment. If one joined the club, the fees were applied directly against the club fees. E.g., a basic monthly maintenance fee of $100 could be applied against a monthly club fee of $200 so that one could live in the community and play golf for $100 per month.

Since then, the community has been annexed by the city of Georgetown. Now, in return for taxes, the city maintains the streets plus provides fee based water and sewer services. The only common grounds that are not part of the recreation center and the golf course is around 0.5 miles of a five foot center, and planted entrance, and a grassed gateway into some garden homes. I would not expect to pay more than $200/month for such maintenance. There are several hundred dwellings in the development.

Ownership of the golf club has changed hands a couple of times, and the cash flow from captive homeowners has to be attractive. But it seems that the contract has been violated and that we should be able to stop payment if we drop out of the golf club. Can you direct us to any precedent for our situation? Thank you.

- Joe

While the conditions affecting the golf club's maintenance responsibilities have changed, your association's governing documents have not. Unless your association's Declaration and/or Bylaws contain provisions that allow payment to the golf club to be reduced if the golf club's maintenance obligations decrease, the Declaration for your homeowners association and the governing documents for the golf club will have to be amended. While it may be relatively easy to convince your neighbors to amend your association's Declaration, it may take more negotiating abilities to persuade the golf club members to reduce the amount your association is required to pay. Review the governing documents for both entities to determine the amendment process; you might need the assistance of a competent attorney to help you interpret the applicable provisions and guide you through the process.

Sincerely,

Margey

I purchased a condo in Sept of 2003. I was elected President of the Condo Board. Concerning filing my income tax for 2004, I have incurred expenses during the 2004 tax year relating to being the President. For example, I purchased computer equipment directly related to purforming my duties, office supplies and set up a small office as well. Am I able to deduct these expenses, and under what schedule do I use.

- Zelda

Your inquiry is very specific to the accounting industry with regard to IRS rules on home-based businesses. I would suggest that you contact a competent CPA or the IRS directly for answers to your questions. If you want to know about community association operations, I'll be glad to help!

Regards,

Margey

On the subject of finance decisions made by the Board of a Texas Condominium Association... I cannot find any articles that give direction to the Board as to how they can or cannot use association funds in investments. We have a bank loan in the association's name that 4 owners are paying off monthly. It originated from a renovation loan in 1999. The balance is low enough now it would be a good investment for the Board of the Association to pay off the loan, execute promissory notes with the 4 owners, and let the association collect interest and payments as a form of investment. Do you have any information that determines if this type of investment activity is allowed?

- Linda

There are no Texas laws that address a condominium association's investment policy. However, the bylaws or Declaration of Texas condominium associations may contain specific provisions regarding borrowing money and investing excess funds. While your recommendation sounds reasonable, I would encourage you to consult with a competent CPA who is knowledgeable in community association AICPA guidelines and IRS rulings to determine the best solution to paying off the loan.

Sincerely,

Margey

Hello, I am glad to have found your website. What a wealth of information.

Two questions:

Reference Maximum Annual General Assessment (MAGA). The BOD has the authority to raise not more than 10% a year (not including taxes or insurance).

Question 1: If a BOD raises the MAGA, even if not imposed, doesn't if have to be documented? The issue is that our HOA did not raise 10% two years in a row, but this year raised our general assessment claiming that in 2000 the BOD voted to automatically raise the MAGA annually whether or not imposed. If they can't produce this document, it doesn't seem they should be able to retroactively raise our MAGA more than 10% above the current fiscal year.

Question 2: Can the BOD use Service Assessment for common services? Our covenants language specifically says the "Service Assessment" is for service for a specific area NOT enjoyed by the entire community.

Our covenants do allow for a Special Assessments, but they must afford the community the opportunity to vote it down with a majority of a quorum within 60 days of the Special Assessment Posting. Can you comment on the two items? Thank You.

- John C.

With regard to your first question, yes, indeed, your board must document in the minutes all their decisions. If a decision was made between meetings, it must be ratified by a formal vote and recorded in the minutes. If the current situation you described is just a matter of misplaced minutes, the secretary could reconstruct them for board approval. However, I would suggest that all the directors and officers who served on the board in 2000 when the decision was originally made sign the newly reconstructed minutes, affirming that they do indeed reflect the decision of the board as it was constituted in 2000. If some of those directors subsequently moved away, then obtain the signatures of those who are still owners in your community. If the current board is unable to reconstruct and execute the minutes of the meeting at which the decision to increase but not implement the maintenance fees was made, I would recommend that they forego any increase based on the 2000 decision. As a side note, any decision to increase but not implement the maintenance fees should have been communicated to the owners and included in any resale reports for subsequent owners.

Regarding the Service Assessment, it would appear that the language you quoted clearly delineates between a Service Assessment and a Special Assessment. If the board intends to use the additional Service Assessment funds to repair, replace or improve the common areas that are enjoyed by all owners, then a Special Assessment is the correct action and a vote of the owners as described in your Bylaws would be in order.

Because there may be additional provisions in your association's governing documents or state statute that could affect the appropriateness of my response, I urge you to consult with a competent attorney knowledgeable in community association law.

Sincerely,

Margey

Thank You VERY Much for you quick response.

However, I was not specific enough in my second question. The BOD is using the Service Assessment to pay for trash and snow removal.

Obviously this is a service common to all, but a townhouse resident has a slightly lower fee for trash removal than a single family house owner, snow is the same across the community.

The BOD interpreted the "service" of trash removal as something covered by the Service Assessment. I was in a previous HOA in which a Service Assessment was charged to residents that had a separate swimming pool in their area that could not be used by general members, thus not enjoyed by all.

I am of the opinion that the common services (trash, landscape maintenance, snow removal) must be covered either in the general assessment, or a Special Assessment if prices have risen drastically, want more services like an unforecasted spring planting of 1000s of flowers, or need to replace reserves after a reserve report is rendered finding reserves lower than should be.

Again, if you could comment, I would greatly appreciate it. Best Regards.

- John C.

Looking back to your original question, I see that you defined Service Assessment as "service for a specific area NOT enjoyed by the entire community". Even if that is the exact quotation from your governing documents, my initial response is still applicable. Every member of your community benefits from the trash removal program provided by your homeowners association. Unless the definition of Service Assessment includes a provision that segregates the cost of a service from the community-wide nature of the service, then trash removal should be considered a general assessment.

Sincerely,

Margey

Is there a required amount that must be included in our annual budget for a reserve fund? We are a cooperative association in Minnesota. Our Declaration states only that "Annual assessments shall provide, among other things, for contributions to a separate reserve fund sufficient to cover the periodic cost of maintenance, repair and replacement of the Common Elements."

- Linda

Based on the verbiage you quoted, it appears that your Declaration is mandating that your reserve fund contain sufficient amounts to replace all the capital common area components in your community as their useful life expires. How can you determine how much should be allocated to reserves? You'll get the most assurance by hiring a "Reserve Specialist", a person who has received this designation from the Community Associations Institute (www.caionline.org) based on experience, qualifications and the number of reserve studies prepared. Alternatives are:

1. Hire an engineer or competent contractor to identify the components, their useful life, remaining life and replacement cost, and then prepare a spreadsheet of the data that will determine in which year each component will probably need to be replaced and how much the association should be setting aside monthly in order to have adequate funds to pay for the replacement;
   
   
2. survey your members to determine level of interest and qualifications to conduct an internal reserve study and cash flow analysis.

Funding a reserve account based on the recommendations of a reserve study provides the most confidence that the association will have sufficient funds on hand to replace each capital component as the need arises. There is no other method to determine how much an association should budget to allocate to the reserve fund.

Sincerely,

Margey

To whom it may concern:

Thank you for your assistance. Our HOA in SC is about to transition to the residents and we are looking for advice/resources. I am on the 'unofficial' executive committee (4 residents) which has been working with the property management company (on behalf of the developer) for over a year. We know they are on the developer's side (for now) but we have been able to accomplish a few things. About 3 weeks ago, we were informed that the transition would occur the following month (less than 2 weeks from today).

We were not expecting it to happen so quickly as we have not yet reached the stated capacity in the rules. But we want to move forward because we feel we could get more accomplished. (We think the developer wants to get us out of his hair.) We have many concerns, and as I read more on the internet, I realize there is a lot to prepare for. Not to list all of our concerns, but we do have one that is very important.

The development has been around at least 4-5 years, we are at 85+% full, and final capacity will be about 450 single-family homes, plus 250 townhomes. The total "surplus" from the budget that they are handing us is only $20,000. We know that this number is frightfully low and could cause us many issues. We would have expected at least 20k/year to be set aside for surplus, with a total surplus of 100k, or more.

*** One item we learned is that the developer was not collecting monthly HOA fees from the builders from the beginning point.

Unfortunately, we don't know what that "beginning point" should be; ie. when they first assumed control of the lot. Any advice, opinions, and/or resources, on this concern, or for the broader picture, would be greatly appreciated.

- Paul

I would first look in the governing documents for your association for any language that 1) requires that the reserve be fully funded and 2) specifies the start date for paying assessments. If there is language requiring a fully funded reserve, your homeowner-controlled board should contract with either a Reserve Specialist, a designation conferred by the Community Associations Institute or a competent engineer or architect for a reserve study that identifies all the capital common area components in your community, their replacement life, remaining life, and replacement cost. With that completed study in hand, you will know how much should be in reserves to pay for each component as its useful life expires. You could then advise the developer that the homeowner board expects him to fund any shortfall in the reserve account.

With regard to the start date for paying assessments, every Declaration I've ever seen contains language detailing when each new owner must start paying assessments, and most also address how the declarant (developer)or builders must fund the assessment or shortfalls in the operating account. When you find that provision, you should be able to calculate how much the Declarant or each builder should have paid to the association. Since most states authorize homeowner association fees to be an automatic lien on the property, the Declarant/builder must pay any delinquency you calculate in order to clear the title and be able to sell the remaining single family homes and townhomes. The disclosure statement you may have received from the developer should also contain information on how the reserve will be funded and how much should be allocated to it monthly or annually,

However, if the reason for the working capital shortfall is because the Declarant-controlled Board of Directors purposefully set the annual assessments too low to meet the association's operating and funded reserve needs, then everyone that was obligated to pay assessments during the previous years (which also includes all of the homeowners, as well as the Declarant and builders) would be responsible for paying their proportionate share of the shortfall.

Finally, an association that is going through transition from Declarant control needs to retain the services of an attorney experienced in the such transitions to assist them with the process. I believe CAI has a booklet on Declarant transition ("Developer Transition" item #5923 $25.00 retail, $15.00 member), as well as a free report from the Foundation on Community Research entitled "Best Practices: Transition" attached to this response which should be referenced. The attorney can verify that all of the common area and other property that was supposed to be transitioned has in fact been recorded, and verify that all of the proffers from the municipality have been met. There are numerous other items that need to be accomplished, so check the transition checklist.

Sincerely,

Margey

We are association members in a 30 year old 160 unit condominium association in the State of Georgia. The Association has approximately $30,000 in cash. We are concerned that there appear to be no reserves for either expected or unexpected repairs and maintenance. Based upon the Associations past performance it is evident that the Board has no interest in having a Reserve Study performed. Is there a general range of reserve amounts that would be typical for a condominium association? My own estimate is that for a 30 year old complex with significant deferred maintenace that a resrve amount of $10,000 per unit or $1.6 million might be appropriate. Could you refer us to a source of information regarding what range of reserve amounts may be reasonable?

- S. H.

The first issue to address with regard to your reserve account is whether or not your governing documents (specifically the Declaration and Bylaws) or state statutes mandate that Georgia condominium associations must fully fund their reserves. That means reading your documents thoroughly to find all provisions relating to reserves. The next step is to go to your state's online legislative service - (Georgia) and enter "condominium reserve" in the keyword search field. Then, familiarize yourself with the provisions that discuss the obligation of the association to fund reserves.

The next step is to determine how much should be in your reserve account. There is no set percentage or amount that you can use -- one could only wish it were that easy! Instead, the process involves identifying all the capital components in your community for which the association is responsible for maintenance, then determine the replacement cost, replacement life and remaining life. With that information in hand, the next step is to create a formula that will determine how much should presently be in your reserve account, and how much you should be setting aside monthly to your reserves in order to have the funds available when a the useful of a capital component expires.

To ensure that your board has all the information about your reserves necessary to make an educated decision regarding funding objectives, I recommend that you hire a professional to perform a reserve study. The professional could be an engineer, architect, or some other consultant, but each should be experienced in performing reserve analyses for community associations. You are fortunate to live in Georgia because there is large chapter of the Community Associations Institute (CAI) located in Atlanta but which serves the entire state and which has among its members board members, homeowners associations, managers, and professionals and contractors who provide services to homeowners associations. To find a Reserve Specialist, a designation conferred by CAI, contact the Georgia chapter at www.cai-georgia.org or 770-736-7233.

Sincerely,

Margey

Top | Board of Directors | Communications | Finances | General
Insurance | Legal | Maintenance | Management | Rules

Common sense is a commodity in short supply these days, and you dispense it so freely. Thank you for sharing your expertise.

I hope you can clarify something for me. I read somewhere recently, though I can't remember where, that when an owner sells his condominium unit, his vote transfers to the buyer once escrow is opened. Is this a law in CA? Our cc&r's don't specifically address this issue. Our annual meeting is this week and we have 2 (out of 16) units in escrow currently. I feel we should, at least, invite the buyers to our annual meeting. How would you handle this? Thanks.

- Scott

I'm so glad you find our column helpful!

To be sure I give you the right California answer, I asked Ms. Eleanor Hugus, President and CEO of N.N. Jaeschke, Inc. in San Diego (www.nnj.com). Ms. Hugus responded as follows, "Title does not transfer until the unit is closed, so they would not be considered owners unless the closing has taken place."

Now that you know the legal answer, let's address the practical one. It's a very nice idea to invite almost-owners to your annual meeting so they can become involved in their community and meet their neighbors as soon as possible. However, there three caveats to this generous offer:

1. remember that nonowners have no right to speak or vote at the annual meeting;
2. be sure that the selling owners concur with extending an invitation to the buyers;
3. if you anticipate controversy or conflict at the meeting, think twice about inviting buyers in escrow. Imagine the potential liability to the association if the buyers back out because of behavior or actions that occurred at the meeting!

Sincerely,

Margey

We are a small condo association in Colorado.  We have 16 units in all.  My first question is:  Does the BOD have to have a key to each unit? Appartently the builder gave keys, unmarked, to the past board, who in turn gave them to the current board.  Is there truly a reason for us to have a key, and if so how do we convince the homeowner they need to give the current BOD a key that is marked for their unit?

Second question:  When units were being built the builder owned one.  They put a fence up around part of the "Common General Element" land on the backside of their unit.  Since, the brother of  the builder bought this condo and is claiming they are paying taxes on that land.  We agree they are paying taxes, but so are the other 15 of us.  We would like the fence removed, but have been told that since it was not removed in the first year the association started that we have no recourse.  It that true? If so what can we do?  This unit owner complains he has to pay dues for landscape when the association does not mow this area.  The builder did put the water irrigation to that portion and we as the BOD would like to cut the line and not provide water to this area since only one unit gets to utilize the fenced in portion.  Help!! Homeowner is now selling unit using the fenced in area as a plus!  What do we do as the other homeowners are now complaining about the fence?

- Julie

While the question of whether or not your board members have keys to each unit can only be answered by those board members, I can tell you that retaining the keys can raise serious liability issues for the association. Unless it is mandated by your governing documents, I would recommend that the board return any unit keys in their possession and use the services of a locksmith if the need arises to quickly access a unit.

With regard to the fence installed around the builder's brother's unit, the only way to determine who actually owns the land within the fence is to inspect the plat of the community as well as of that unit. The plats will clearly delineate common area and individual units; if they indicate that the land is common area then the association has the authority to remove the fence and terminate irrigation services to the area. If the plat indicates that the unit owner owns the area, the association has the authority to offer the system to the owner if he installs his own lawn meter so that he is responsible for the bill, or to terminate irrigation services to the brother.

Since the brother now has the unit listed for sale, it is urgent that you contact an attorney to determine how you can ensure that all potential owners realize that there is a dispute over ownership of the fence-enclosed area. The attorney can also help you determine who legally owns that land.

Sincerely,

Margey

What are 'minutes' as referred to by an HOA Board of Directors?

- Doug

Minutes are the official record of the board's decisions with regard to the operations of the community association. They are not a verbatim narrative of the meetings, but a concise summary of the board's actions. For more information about taking minutes, consider purchasing "Communications for Community Associations" and "The Board Secretary" from the Community Associations Institute at http://www.caisecure.net/. Or, go to my favorite search engine, Google, enter "board of director minutes" in the keyword field, and start reading the more than 87,000 results!

Sincerely,

Margey

I have been working for a condo association since **/**/**. I am the first employee they have ever had.(maint./mngr.) With no disrespect intended they have no clue what it means to be an employer. Some of the things that have been said to me by board members would or could have initiated legal action in other sectors of the business. I love the people I work for and with. Down the road when they have another employee he or she may not be as forgiving. Is there something they can read or get off of the internet that would explain rules and regulations governing employer/employee relations?

- G. H.

I certainly empathize with the discouraging situation in which you find yourself, and applaud your effort to educate your board members on appropriate employee-employer relationships. There is a wealth of free information on the Internet regarding human resources, ranging from the U.S. Dept. of Labor to self-questionnaires on how well one supervises employees. I entered "human resources" in Google's keyword search field and came up with more than 50,000 results!!!

Sincerely,

Margey

What is the best way to organize a Resolutions book?

- Mary Ann

First of all, I congratulate your board for using the resolution process to address omissions or conflicts in your governing documents!

With regard to the manner in which a Resolution Book should be organized, the answer is to set it up so that anyone can find a specific resolution with little effort. If you can scan each resolution to an electronic file, using a key word search would be ideal.

In hard copy format, the key is the Table of Contents which should be cross-referenced by date, subject and address. So, if 11808 Willow Street received permission to install burglar bars on the windows, the Resolution Book's Table of Contents would contain a reference to the date the special resolution was approved, to 11808 Willow Street and to burglar bars. If the board approves a policy resolution establishing a yard-of-the-month program, the Table of Contents would contain a reference to the resolution approval date and to Yard-of-the-Month.

You could drill down even more by developing subjects in the Table of Contents to more easily locate resolutions. For example, you would have a separate tab and Table of Contents for the dates the resolutions were approved, a tab and Table of Contents for each address that has received board approval for an action via board resolution, and separate tabs and Tables of Contents for Architectural Approval, Governing Documents, Buildings, Common Areas, Landscaping, or whatever topics you determine work best for your recording and retrieval process.

Sincerely,

Margey

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Who do I contact for answers concerning Community Associations in Texas. Is bid rigging illegal if done by a Community Association Board of Directors? Thank you.

There is no specific Texas law prohibiting "bid rigging", but there are statutes as well as each association's governing documents that establish the board of directors of community associations as fiduciary agents who must act, to the best of their abilities, in the best interests of the membership and the association. If board members are personally benefiting from their position of authority and responsibility, they may lose the protection of their association's liability insurance. As a consequence, they may find themselves personally liable for any damage or loss the association and/or its members incur as a result of the board's or board member's impropriety.

If you think your board members are not acting in the best interests of your association, your first step should be to send them a succinct letter listing their alleged transgressions. Give them the opportunity to refute your charges; it's possible that your perception of the board's actions does not reflect the reality of the situation. If you are still not satisfied after receiving the board's response, your next step could be to alert your association's insurance agent of a possible breach of fiduciary duty by the board. The insurance agent should be concerned about any such allegation and investigate it to determine if the board is indeed acting inappropriately. It's possible that the board was unaware that their behavior as fiduciary agents is strictly governed by state statute. Perhaps the insurance agent's investigation will serve as a wake-up call to caution the board about the implications of their decisions and actions and to encourage them to learn how to be responsive, educated and informed leaders of their community.

If the board continues its irresponsible and perhaps illegal actions, it might be time for you to look in your Bylaws for the process to replace board members. Let your neighbors know what you perceive to be the problem, and encourage them to assign their proxy to you or promise to attend and support you at an annual or special meeting at which new board members will be elected.

Sincerely,

Margey

Is there an Ohio State law that states what they by-laws of a condominum must have....does the by-laws need to have it stating that the association is liable to cover from the outside in to the first coat of paint for insurance purposes??? I am asking this because our by laws does not state exactly from where with in the walls they cover, it is very unclear as to what they cover...thanks for your assistance.

- M. M.

To review Ohio's Condominium Act, select "Title LIII Real Property" and then examine Chapter 5311 Condominium Property. However, if neither your governing documents, particularly your Condominium Declaration, nor the Condominium Act defines the maintenance responsibility of specific components, your board could consider crafting a policy resolution addressing these specific issues. The resolution would clarify omissions in the Declaration to assign maintenance responsibility where none previously existed.

Sincerely,

Margey

Bylaws - Renewal

Our association bylaws, dated 1977, clearly state: "These covenants and restrictions are real covenants and restrictions and are to run with the land, and shall be binding on all parties and owners, and on all parties claiming under them, for a period of twenty-five (25) years from the date these covenants and restrictions are recorded, after which time said covenants and restrictions shall be automatically extended for successive periods of ten (10) years each, unless prior to the commencement of any 10-year period, an instrument in writing, signed by a majority of the owners of lots, has been recorded in the Public Records of ****** County, Florida, which said instrument shall agree to change, alter or rescind said covenants and restrictions in whole or in part." I have just been advised that the Florida State Statutes say that Bylaws MUST be renewed by their expiration date.  Because our Bylaws state differently, the 25 years lapsed in 2002 and no one thought we had to do anything at all.  Do we have a legal Homeowner Association, or do we have to go through the exercise of reforming ourselves?

- Heidi T.

Florida law prohibits me from offering legal advice to its constituents. However, if you would provide me with the name of the city in which your community is located, I will be glad to respond with the names of some attorneys and/or management companies that may have the answers to your questions.

Sincerely,

Margey

We are in the the middle of updating our By-laws and Declaration. Is there a framework we can copy already out there that works? This is for the state of Georgia. Also, how often should we have an Audit and how much would one cost?

- W. S.

From your question I can't determine if your association is a condominium or planned community development. For either, however, there is a national standard developed by the National Conference of Commissioners on Uniform State Laws based in Chicago. The Uniform Common Interest Ownership Act details what provisions should be in the Declaration for planned communities and condominiums, the Uniform Planned Community Act is for planned communities only, and the Uniform Condominium Act is for condominiums. However, these Acts recommend suggested provisions, not the specific wording in an entire Declaration. To find more enlightened documents in Georgia, you might try checking your county or local jurisdiction courthouse where Declarations for homeowner associations are usually recorded. Those written by attorneys George Nowak or Wayne Hyatt probably contain the most current recommended language.

With regard to an audit, your Declaration or Bylaws may contain a provision requiring annual audits by using the word "shall" instead of "may" when addressing this topic. If there is no mention of an audit in your documents, I recommend you have one annually to ensure that the financial statements you receive from your treasurer or manager fairly reflect the actual financial condition of your association. How much should it cost? It all depends on the condition of your books and records and the number of transactions, as well as other factors. You might consider obtaining bids from CPAs who are members of the Georgia chapter of the Community Associations Institute (go to www.caionline.org, then click on the link to the chapters).

Sincerely,

Margey

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Who is responsible for cleaning out the dryer vents, the Association or the unit owner? I assumed that it would be the unit owner since they own the dryer individually. It seems that our unit owners have a past history of thinking that condos are the same as assisted living!

- J. M.

If your governing documents and state statutes do not detail who is responsible for the maintenance of dryer vents, your board should pass a resolution defining that obligation (see the September 2004 Ask the Expert Archives for the steps to take in developing a resolution). Typically, the owner is indeed responsible for maintaining the vent since it services only his unit. However, since there may be economies of scale by arranging to have several vents cleaned at the same time, perhaps the association could negotiate with a local contractor to reduce his price if five or more owners arrange to have him clean their vents on the same day.

Sincerely,

Margey

Can you have a Limited Common element such as a deck be the sole responsibility of the unit owner? And can you force them to keep it up?

- W. S.

Yes, indeed, it is possible that the governing documents for a community association assign maintenance responsibility for a limited common element to the owner. So long as the assignment is clear and unambiguous, the board is empowered to enforce it through any means available to it either in the documents or state statute.

Sincerely,

Margey

I'm in a townhome association. Last winter a pipe froze and burst in the common wall between my neighbor's and my units. Since the frozen pipe was about 10 feet in from an outside wall, it was apparent that the freezing occurred due to a lack of proper insulation in the unheated crawl space(s) above the common wall. These are twin townhome units.  My question is who is responsible for ensuring proper insulation in this unheated crawl space?

The association's attorney cites an article in our declarations titled "Exterior and Common Area Maintenance". This article in part states, "The Association shall be responsible for the maintenance and repair of roofs and exterior surfaces of all Living Units including , without limitation, the painting of the same as often as necessary and the maintenance and repair of roofs and overhangs and for the maintenance and repair of any portion of any Living Unit damaged by the roof or exterior surfaces thereof being in a state of disrepair."

The term "Living Unit" is defined as: "a residential housing unit consisting of a group of rooms and hallways and attached garage which are designed and intended for use as living quarters for one family and located or to be located upon one Lot."

My contention is that the phrase "...exterior surfaces of all Living Units..." applies to anything exterior to my living space (including the unheated crawl space), whereas the attorney says that it only refers to the outside (exterior) of the building" that the Living Units are contained within, even though the word "building" is not used in this article. Could you please comment and advise as to how you would interpret our declarations?

- Dennis

Your association's legal counsel is familiar with your documents and applicable state statutes and in his professional opinion has stated that the definition of "exterior surfaces" is the "outside (exterior) of the Buildings". Since that is a typical definition of the term, and since the association's attorney has issued his opinion in this matter, it looks like you need to focus your time and money on repairing the broken pipe and damage it caused, rather that trying to pursue legal recourse for the situation.

Sincerely,

Margey

My porch has leaked into my garage for 5 years. It has cost me 2 garage door openers, an air condition unit from repair workers standing on it to fix the gutter, I have witheld association fees for 1 year at a time waiting for the proper repairs. Every time it rains it rains in my garage also. What right due to neglegence to I have with respect to lack of repairs?

- Joe

In my 26 years in the community association business, I've yet to see a set of governing documents that allow a homeowner to withhold payment for any reason. If your association has failed to implement repairs to your unit, I suggest that you first send to all the board members and manager, if applicable, a list of the necessary work, giving them thirty days to accomplish it or you will file suit against them in the local court of competent jurisdiction (which may be called small claims court). If the association or manager replies with reasons why the work cannot be effectuated, that decision should be based on specific provisions in the governing documents that exclude the work in question or address other issues that may be involved.

If the association does not provide an acceptable response to you within the specified period of time, I recommend that you do indeed file suit and let a judge determine the validity of your claim and the association's response.

Sincerely,

Margey

We have a small community of 85 homes that are on large lots. Some of these lots have 200-300 street frontage. Between some of these LOT's there exist ROW's on the plat map. Whose responsibility is it to maintain those areas. The adjoining lot owners or the HOA? Thanks.

- Mark D.

The subdivision plat and each homeowner's plat that's attached to his or her deed should delineate the ownership of the areas in question. The Declaration should detail maintenance responsibility of those areas. Since each Declaration and plat is unique, the ones for your association are the only source for answers to your questions.

After checking your plat and Declaration, if you are still unsure as to whom is responsible, you may want to consult a real estate attorney.

Sincerely,

Margey

I am on a Board of Director for a 22 home, home owner association in Arizona (***** County). The HOA was formed by the residents after the Builder turned it over to the residents at the completition of the community, with a contract in place with a Management Company. The Management Co. didn't follow through with issues the BOD requested per the contract, for the Builder to improve landscaping designs in our common area, before turning it over to the BOD. This went on for several months. As a board we created a new contract that has the BOD managing the HOA affairs, and the Management Co. collecting monies and paying bills only. However, the issue still exists with our original landscaping, the Builder ignoring our requests. We asked the Management Co. to follow up with those issues, as they were paid several months for services that were never completed. Also, the BOD has began contacting the Builder to try and get some cooperation and answers. Any suggestions on how to get some of the landscaping issues resolved? We will be 1 year old in April and are anxious to get these items resolved.

In addition, the Builder told the Management Co. after the subdivision was turned over, they would provide a reserve for the HOA around $2,000, as we are small in number, have a low monthly HOA fee, and have a large common/landscaping area. The Builder has neglected to provide any reserve, and our HOA dues aren't covering our costs to maintain the landscaping. We addressed this issue of no reserves with the Management Co., we received no assistance. Therefore, the BOD has begun to try and get some answers from the Builder in regards to this. Again, the Builder has ignored a lot of phone calls, with no returned messages. Do you know if in Arizona there are any laws regarding a Builder making contributions to an HOA reserve? Can you provide any suggestions on how we might go about obtaining this? We have contemplated having all the Homeowners begin calling the Builder for results? Or taking Legal action? But, we are so limited on money, we don't know if it would be worth a legal route? Most of the residence have not shown much interest in the HOA, and therefore don't know our financial standing. On a side note, the Builder owns 2 homes in the community as investments. Don't you think they would have an interest in upkeeping the community?

Sorry for the lengthly entry. I hope that it makes sense. Graciously.

- J. C.

To ensure that you get the correct answer with regard to Arizona law, I asked Mr. Mark Lewis of Lewis Management Company in Tucson (www.lmri.org) to help me out. Here's what Mr. Lewis wrote:

"Although Association Times cannot provide legal advice, you really need the help of a competent attorney knowledgeable in community association law.

Your dilemma is that to our knowledge there are no specific laws in Arizona that would require the developer to have a reserve fund for landscaping, in a non-condominium development. However, the developer was on the Board of Directors during the early days of the project and had a fiduciary responsibility to provide "adequate funds" to operate the HOA. Perhaps it's the way you phrased it, but it sounds like you are blaming the management company because they are unable to get the developer to accomplish what the new Board desires. The management company may have tried diligently to accomplish your goals, which is all you can reasonable expect. Given the fact that your core argument is that of "construction inadequacies", you should be able to find any number of attorneys who would work on a contingency basis to help as you try to get the developer to "do the right thing". Initial consultations with a contingency attorney are usually affordable or free. Many of the law firms that provide contingency services are active members of the local chapter of the Community Associations Institute. To find the appropriate attorney for you, you could contact the Phoenix CAI chapter at:

Chapter Executive Director
Mitch Menlove
Central Arizona Chapter
1825 W. Adams Street
Phoenix, AZ 85007
Phone: 602-252-4399
Fax: 602-252-4474
E-mail: mitch@cai-az.org
Web URL: http://www.cai-az.org"

Sincerely,

Margey

I bought a condominium about one year ago in California. Our roof started leaking when it rained. I had understood that the roof would be taken care by the association but when we requested for a roof they said that the association does not cover the roof. Please advise on the bylaws.

- Jennifer

Without your documents, it's not possible to determine maintenance responsibility for your roof. I urge you to read the Declaration thoroughly, looking specifically for provisions entitled "Owner Maintenance" and "Association Maintenance" to determine if roof repairs are specifically addressed. You might also review the Davis-Stirling Act by going to your state legislature's website to determine if there are any provisions in that law that address responsibility for roof repairs.

There is one other investigation you could conduct: who told you that the association is responsible for the roof? If it was your Realtor or the seller of the unit, do you have that in writing? If so, you might have legal recourse against them, but you should consult with an attorney for advice in this regard.

Sincerely,

Margey

I live in a Michigan Site Condo with 12 single family homes. Our association has taken the route of having the condo owners provide maintenance for the common areas. We have an annual cleaning of the detention pond and recently they have added the chore of mowing/trimming the common elements (~2 acres using your own personal tools). In fact, I broke my weed trimmer the first time I had lawn maintenance duty and had to replace it at my own expense. This is more than I was willing to do when I first moved in, but have relunctantly agreed to this.

Now we have a problem with the detention pond.  It is filled with water and the pumps are not working.  Again, the board  members have decided against hiring this work out and have started renting portable pumps which the owners have to "man".  This involves working around the detention "pit" which I feel is dangerous, especially since nobody in the association has any skills or knowledge in this area.  To make matters worse, our current plan involves "pumping the pit until spring so we  can go down in the pit and clean it out. Only then will we hire someone to complete the work".

I have several reservations about this plan. First, the liability aspect; can we be held liable if someone is injured while working around the pit? How about compliance with Township laws(we pump the water into the Township's roadside ditch)?  Second, what if someone's basement floods due to not getting the pond fixed in a timely manner?  What about inadvertent damage to the pond system caused by the unskilled owner/workers?  There are a host of other concerns, but hopefully this gives you an idea of the challenges I see.

Am I out of line with what our responsibilities are in terms of fixing things like detention ponds? I know the motivation to perform self-maintence is to "save money", but I think we may be wasting money instead. I certainly don't want to create a rift, but I feel that homeowner's should not have to perform this type of work and that hiring this out to licensed contractor would produce much better results. Any guidance would be appreciated.

- C.

You are absolutely correct in your concerns -- each scenario you mentioned can result in significant liability to both your association and to the individual members.

It would appear that your board is trying to keep maintenance fees as low as possible by galvanizing the owners to perform the services that would otherwise have to be contracted.

If the majority of the members prefer to pay more in fees and not personally do the work, they need to convey that preference to the board. An alternative might be to have those owners who do not want to perform physical labor pay an equivalent amount to the association, but determining an appropriate and acceptable amount might be difficult. If your governing documents state that the association is responsible for maintaining your association's common elements, then there are two alternatives to your current situation:

1. continue the current practice of requiring each of the twelve owners to donate equipment and labor (either his or her own or a person who is contracted on his or her behalf), or
   
   
2. eliminate the self-help method, increase maintenance fees, and hire experts with their own liability and workers compensation insurance to perform the services and functions currently performed by the homeowners.

Sincerely,

Margey

After the recent hurricanes, several trees were downed and/or ruined beyond salvaging. I live in a 55+ community. Friends have told me Florida statutes state that when a tree is lost the board/association must replace these trees on a two for one basis. Is this true? I have several glaring blanks spots on the side of the house and the association is giving us all until May to replace the downed trees. Thanks in advance for your help.

- Noreen

Not being familiar with Florida statutes, I'm sending you the link to Florida's Department of Business and Professional Regulation, Division of Florida Land Sales, Condominiums and Mobile Homes, for your perusal. I also recommend that you read your governing documents, particularly the Declaration and the Bylaws, as well as ask your local zoning or planning department if there are any regulations regarding the replacement of trees that die or for some reason must be removed.

Sincerely,

Margey

Is there an association that management companies belong to that would have a registry of members who manage townhomes? We are looking for a management company. Your response will be much appreciated.

- Dixie L.

Yes, indeed, there is a national research and educational organization that has almost 1,500 community association management companies as members throughout the United States. Go to www.caionline.org for more information on a CAI chapter that may be in your area, or for local management companies that are members even without a chapter. Or, if you live in California, go to www.cacm.org for another organization to which only California community association management companies may belong.

Sincerely,

Margey

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I'm the VP of our HOA. A homeowner just installed an antenna on their house without requesting permission. We are aware of the 1998 FCC latest ruling on prohibitions for certain antenna installations. However, our existing covenants requires a homeowner to submit to the Association a request for approval before installation starts. Are we within our rights as a board to request an application for approval???

- J. W.

The Telecommunications Act of 1996 pre-empted deed restrictions and homeowner associations' governing documents. That means that the Act takes precedence and if there's a conflict between the Act and a community association's governing documents, the Act rules. So, you may not require owners to submit an application for approval for installing a satellite dish or antenna covered by the Act. However, the Act authorizes a homeowners association board of directors to control certain placement and visual issues; for specific details regarding the impact of the Act on community associations, go to http://www.fcc.gov/mb/facts/otard.html.

Sincerely,

Margey

Do Associations commonly have restrictions regarding the feeding of wild birds? Several nature lovers around the complex have bird feeders, but a unit owner recently complained to our Management Company about feeders causing pigeons to congregate in the complex. I know that there's nothing in the bylaws or R&R's about birds. Our complex has a much bigger problem with dog droppings. Comments please!

- J. M.

Most governing documents do not contain prohibitions against feeding wild birds. However, many associations' boards of directors have approved a rule limiting or banning bird feedings because it's not just birds who are attracted to the feed. Varmints such as rats and other unsavory animals like bird food, but residents certainly don't like to see those critters near their homes. Further, birds and varmints may be carriers of disease that may be contracted by humans, and bird excrement may damage foliage in the area of the feeder or create unhealthy conditions on the patio or on or below the balcony on which a bird feeder is located.

For all these reasons, it makes sense to prohibit bird feeding in your community.

Sincerely,

Margey

Our developer/builder is not enforcing the CC&R's and in fact is violating them. The homeowners have no input into the HOA until there is 80% buy out. What can we do to insure that our CC&R's are upheld and can we do anything to require the builder to repair the streets and sidewalks that he is damaging during construction? He is not communicating with us. Only 1 HOA meeting has been held and there has been no audit of the monies he is collecting thru our dues. The neighborhood has existed for a year and a half now. Any advice?

- Teri B.

Developers who serve in a dual role as Declarant and board member must walk a fine line to ensure that they do not violate their fiduciary duty to the homeowners association. Perhaps your developer is unaware of his obligations when he controls the board of directors during the development period. I would suggest that you send him "Best Practices: Transition" published by the Community Associations Institute, highlighting the relevant sections.

If your developer continues to ignore his responsibilities to the association, determine if the association carries a Directors and Officers Liability insurance policy. If it does, advise the insurance agent of your concerns; hopefully, the agent will try to resolve the issues in order to prevent potential litigation.

If neither of the above suggestions satisfactorily resolves your concerns, you may need to consult with an attorney to determine your legal rights in the circumstances your described.

Sincerely,

Margey

I am wondering whether it is appropriate or legal to have a housing association board member walk around the community daily with a camera, photographing people's balconies (even with their blinds open) to document "violations" of the rules/regulations of the association. An example of how extreme this person's behavior has become: I set my trash outside my door to take my luggage to my car, came back and leashed my dog, locked my door and picked up my garbage to throw out... this association member had literally run to her house to get her camera and tried to photograph my trash to find me in violation of the obvious rule that you can't have trash outside your door. I think this is excessive and would like to go to the association management and request that this woman not be allowed to do this. I think this has to be in violation of my rights. This is not the only situation like this, I have talked to neighbors who have had similar encounters. Please let me know if I have any rights in this situation or whom I should contact to find out. Thank you.

- T. H.

It sounds like your board member is almost obsessive in her sense of fiduciary duty to enforce the governing documents of your community. However, although I don't know the laws of your state with regard to photographing public areas, I do not believe the board member is acting illegally. Your board is obligated to enforce the deed restrictions which were created to protect the property values and individual member's rights in the community. While the board member's behavior may seem extreme as she endeavors to fulfill the mandate of your association's governing documents and state statute, many communities would welcome her diligence.

If you believe the board member's actions are excessive, perhaps you could talk to another board member about this matter. There may be more to the story than you know, and it makes more sense to understand the big picture before writing a formal complaint.

Sincerely,

Margey

I would like to know if you have a current general "schedule of fine assessments"? We have a 25 unit condo complex and unfortunatley 1 owner has violated a number of our C.C.&R's. We do have a copy of fine assessments, but it appears to be dated from the 1990's. If you have such a document, could you please e-mail me the page...

- Irene

The Community Associations Institute (CAI) has an excellent publication entitled "Be Reasonable!" that contains recommended methods to enforce community association deed restrictions as well as suggested policy resolutions that detail fine procedures and alternatives.

Sincerely,

Margey

What is the procedure and the monetary amounts our POA can collect for enforcement of deed restrictions? Who decides what the $ amounts should be? Do the bylaws have to be amended to include fines?

- J. G.

Not knowing the state in which your association is located nor your association's governing documents, I can only provide you with a general response to your question regarding fines.

Typically, there must be language either in the governing documents (Declaration and/or Bylaws) or in state statutes that specifically supersede the governing documents that authorize an association through its board of directors to impose fines on homeowners who violate a provision of the documents. Absent such language, homeowner associations usually cannot impose fines on members for transgressions regarding deed restrictions unless they agree to amend the Declaration to authorize the fining process. However, there may have been a lawsuit in your area regarding this matter; if case law has been established enabling a community association to impose fines without specific authorization in the governing documents or state statute, then that court decision would prevail.

How much can you fine? Judges usually look for a number that is reasonable and which "fits the crime". For example, a judge probably will not uphold a $100/day fine for planting flowers in the common area beds. On the other hand, a judge may consider reasonable a $25/day fine for parking a commercial truck on the association's private street, blocking access to parking areas.

One final caution. Many states and almost all courts require due process before imposing a fine for a deed restriction violation. To view the procedure for developing and approving a policy resolution that includes due process, go to the September 2004 archives of Association Times' Ask the Expert .

Sincerely,

Margey

My homeowner's association is trying to fine me $250 for an expired license plate tag on my car. These fines are bogus. I have current tags, but I don't see how this rule is even reasonable as it has nothing to do with parking. My car is registered with a parking sticker on it. Furthermore, the association has asked that I provide proof via dated material such as a canceled check or receipt showing when I renewed my tag. I explained to them previously that in Fulton County in the state of Georgia, your registration is your receipt and it does not have a date on it. Also, I did not pay by check, so there is no canceled check. I have provided a witness, I have answered questions. The association has verified that I have a current tag now. I have offered them my registration papers. I feel any fines levied at this point are patently unfair, and I'll take this to court if necessary. What else can I do?

- M.

I get the feeling there is more to the story than what you wrote. I can't imagine why the association would deliberately falsely accuse an owner of having an expired license plate tag. There are many states that no longer provide annual tags; why would your board not remove the $250 fine when you showed them proof that your license registration was current? Is it possible that you renewed the license after receiving the initial and perhaps subsequent notice from the board?

The governing documents for your community, in particular the Declaration and the Bylaws, provide the authority to the board to enforce the rules and regulations of your community, one of which appears to be a prohibition against parking vehicles that don't have current license plate tags. You state that Georgia no longer provides annual stickers, so your board should also be aware of the renewal process. If the board cited your car before realizing that the tags were no longer issued, they should apologize to you and remove the fine. If there is another reason why they imposed the fine, they should provide that information to you. If your car was indeed in violation when the association imposed the fine but you subsequently renewed the license, then the fine would appear to be valid. Remember that many communities have rules prohibiting vehicles without a current license in order to prevent excess or inoperable vehicles from being stored on common area property (for which there is seldom sufficient parking space). While I am not familiar with Georgia laws, many states have limitations on the amount Boards of Directors are able to fine their members (in Virginia, the cap is $50 per infraction or $10 per day, not to exceed 90 days). You might want to check your governing documents and statutes to see if there are such limitations in Georgia.

To reach closure on this matter, I suggest you send a certified, cordial letter to the board including a copy of your registration form evidencing that the license plate was renewed prior to their sending their first notice to you. In the letter, ask the board to remove the $250 charge from your account. If the board responds with other reasons for having issued the fine, review the charges and determine their validity. If you disagree with them, ask for hearing at which you can present your facts, calmly and unemotionally. If the board decides that the fines were legitimate, you could file a small claims suit against them in your local court of jurisdiction and let a judge determine who is right.

Sincerely,

Margey

I serve on the board for my condo development and a new issue has cropped up. New homeowners are installing the flat screen tv's with s